- (1.) The Court : Very intricately vexed, but otherwise plainly and simply speaking, the following four questions have been referred to us for our opinion :- (1) Whether on the facts and in the circumstances of the case, where the Commissioner of Income-tax gave a clear finding of fact in his order under section 263 of the Income-tax Act, 1961 that Income-tax Officer allowed relief under section 80-0 of the said Act to the assessee on the entire amount of convertible foreign exchange receivable on account of the Nigerian contract without verifying whether the entire amount of such foreign exchange was received in India; the finding of the Tribunal that there is no good reason brought on record by the Commissioner for setting aside the assessment is based on any relevant evidence or perverse? (2) Whether on the facts and in the circumstances of the case, the tribunal was justified in law in holding that section 80-0 of the Income Tax Act, 1961 did not prescribe any time limit for bringing the convertible foreign exchange into India for the purpose of relief under that section? (3) Whether on the facts and in the circumstances of the case and in view of- (i) the factum of receipt of the entire convertible foreign exchange being come to light on 24th July, 1990 only i.e. much after the orders of the ITO AIT. (ii) the section 155(12) of the Income-tax Act, 1961 not being on the statute after 1st April, 1988; the Tribunal was justified in law in considering the provisions of section 155(12) of the said Act to come to the conclusion that it would be incorrect to say that the assessment was erroneous and prejudicial to the interest of the Revenue? (4) Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in cancelling the order under section 263 of the Income-tax Act, 1961 passed by the Commissioner?"
(2.) Culling out the extracts after hearing the parties, we feel and find that only Question No.4 (supra) is sufficient for our reference because this question contains the pith and substance of the controversy between the parties.
(3.) The assessee claimed allowance under section 80-0 of the Income-tax Act on the ground that the income in convertible foreign exchange had arrived in India, which was covered by section 80-0 of the Act. The assessing officer allowed deduction at the rate of 10% of Rs. 45,64,536/-. The Commissioner of Income-tax, however, in proceedings under section 263 of the Act set aside the allowance on the ground that the entire income forming the subject-matter of the percentage of the allowance had not been received in convertible foreign exchange in India. While, therefore, setting aside the order of assessment relating to the deduction under section 80-0 of the Act, he directed the Income-tax Officer to make fresh assessment after the enquiry into the facts and with reference to the provisions of law as contained in section 80-0 of the Act. He also directed the ITO to give reasonable opportunity of being heard before completion of the fresh assessment proceedings.;